Esther Cepeda: When immigrants arrive as victims

CHICAGO -- Even though our maddening and broken immigration system probably won’t be reformed for at least another few years, small pockets of common sense can be found in the midst of it all.

Take a recent decision in a New York state appellate court clarifying a 1990 statute—called Special Immigration Juvenile Status (SIJS)—which allows abused, neglected or abandoned undocumented immigrant children to apply for asylum in the United States.

The ruling in Marcelina M.-G. v. Israel S. is precedent-setting because immigration laws are not uniform across the states, nor are each state’s immigration laws always in agreement with federal statutes. This makes for lots of cracks for potentially eligible people to fall through.

The case, involving a then-10-year-old girl from Honduras who fled an abusive home in a violence-scarred country, makes clear that immigrant children who have been abandoned, neglected or abused by one parent—as opposed to by both parents—are eligible for SIJS, which affords them greater protections and the opportunity to legalize their status in the United States.

The legal complexity of this case illustrates its significance. The appellate-court decision overturned a lower court’s decision that rested on the idea that a child petitioner for legal status under SIJS would have to conclusively prove that he or she had been abandoned by both parents to be eligible for the protected status.

It also clarifies the interpretation of the SIJS statute for all New York courts. (The case was decided in the state court because, while SIJS was created by Congress, determination of a petitioner’s status must be made through a state, and usually a juvenile, court.)

As far as Paul Hastings, LLP—the pro bono law firm working on this case—knows, it’s the first appellate-court decision in New York to squarely address this issue (lower courts had previously reached conflicting decisions) and an important national precedent in efforts to secure SIJS for children.

Kevin Broughel, the attorney representing the young Honduran girl, told me that this one clarification will have a tremendous ripple effect on the thousands of children who, every year, face the U.S. immigration court system without parents or family—and often without any legal assistance.

“This affirms that the purpose of the [SIJS] statute is to protect vulnerable immigrant children who [in their native countries] were facing serious abuse, neglect or abandonment and now can apply for legal status to stay in the U.S.,” Broughel told me.

Two important and not well-understood points must be emphasized here:

First, children as young as 2 are expected to speak for themselves in immigration court—such as in cases where their parents have already been deported, or as in the case of the girl from Honduras, when children flee to the U.S. with the help of “coyotes.”

Kids in Need of Defense (KIND), a legal advocacy organization based in Washington, D.C., estimates that each year, more than 8,000 children come to the U.S. unaccompanied. They are provided no legal counsel because no law requires it, which frustrates judges and makes the courts even less efficient than they would be with intervention for the kids, most of whom don’t speak English.

“Generally they are finding themselves here in the U.S. alone after fleeing war, violence, gang recruitment, gender-related discrimination or danger, or being a victim of child trafficking,” Young told me. “We’re really talking about a forced-displacement refugee situation as opposed to a voluntary migration or an immigration movement.”

Though precedent-setting, the ruling regarding the Honduran child isn’t a proper replacement for reforms to current immigration law that would, for a very low cost, codify an ongoing public-private partnership between government authorities and organizations such as KIND that can marshal the resources of lawyers willing to work on a pro bono basis.

“We were very pleased that the Senate version [of the most recent immigration reform bill] included a number of provisions to increase protections for unaccompanied minors—including mandating that children be represented by counsel,” Young said. “If that ever became law, we could really help these children.”

No one knows what the future holds for any immigration reforms. But if a piecemeal approach is attempted, as is being discussed in the House of Representatives, this highly vulnerable group of children must not be forgotten.

Esther J. Cepeda is a columnist for the Washington Post Writers Group. Her email address is estherjcepeda@washpost.com. Follow her on Twitter, @estherjcepeda.